Judge Sandy Street is belted around the field by the Full Federal Court in two important appeals that rejected his judicial method … Judge called upon to slow down the rate of knocking-out migration and refugee cases at the first court date … Federal Circuit Court swamped … Ginger Snatch reports courtside 

JUDGE Sandy Street of the Federal Circus Court has come in for a birching from the Full Feds for his handling of migration and refugee cases. 

In two decisions in the past week Mansfield, Tracey and Mortimer JJ were critical of Sandy Street for failing to accord procedural fairness to applicants seeking review of adverse tribunal decisions.

In both instances Judge Street had dismissed, at the first court date, appeals by applicants from the refugee and migration review tribunals, without hearing any evidence. 

His rapid delivery of ex tempore judgments, in an effort to handle a daunting list, has been the talk of the Sydney bar ‘n’ grill for months

In both the cases the Full Feds found that Judge Street misconstrued and misapplied s.17A of the FCCA Act, which provides for the court to give judgment if it is satisfied that one of the parties has no reasonable prospect of successfully prosecuting a case.  

However, the provision is subject to the requirement of procedural fairness, which in these instances went missing. 

In SZWBH v Minister for Immigration and Border Protection Street said, at the first court date, that the application from an unrepresented Sri Lankan Tamil was “doomed to failure”. No opportunity had been given to file evidence.

The main ground of the appeal to the FCC was that the RRT had failed to consider or evaluate the claim that the applicant faced risks on return to Sri Lanka because various close relatives had been abducted or shot by the army. 

This is how the transcript went: 

At the hearing the minister submitted that the application should not be dealt with summarily, given that the court had limited information and that there had only been an “initial response” by the applicant to the question of jurisdictional error. 

The Federal Court said the concession was properly made and the appeal should be allowed. 

Judgment should not have been delivered summarily where there was a real dispute as to issues of fact. 

For a judge to proceed without notice to dismiss a judicial review, proceeding summarily at the first return date against a party who is an unrepresented Tamil asylum seeker is, “to use the language of Gageler J in Pompano, ‘anathema to Ch 111 of the Constitution’.” 

At the very lease, notice in advance should be given. 

“We can see no reason to infer that anything said by an unrepresented Tamil asylum seeker would have been capable of diverting the primary judge from the course he appeared determined to take in this proceeding.” 

Go back, start again with a different Circus Court judge. 

IN Shrestha v Migration Review Tribunal another thumping rebuttal of Street J’s method of handling the list was delivered. 

Again the judge failed to accord procedural fairness and had incorrectly applied s.17A of the FCCA Act.  

The minister had cancelled the applicants vocational education and training visa on the ground of non-attendance at a registered course. 

However, records showed Shrestha had finished his first enrolment in a computer science course, but had two further enrolments in the same course, meaning that he had not yet gained the necessary qualification. 

The orders made by Street were not supported by the minister or the applicant. The parties had agreed on a timetable for filing evidence and submissions. The jointly proposed orders were to vacate the first court date and set a timetable for the minister to provide a court book and for the appellant to file any additional evidence, including a transcript of the hearing before the MRT. 

The consent orders were sent to the judge’s associate on February 5, 2015. 

The judge then directed that the matter be heard the next day, whereupon he said that he didn’t think the application identified any jurisdictional error. 

As the Full Feds said: 

“Having regard to the terms of the grounds of appeal and the proposed consent orders accommodating the provision of further information including the transcript, it is hard to understand why the primary judge did not accept the joint procedural proposal of the appellant and the minister.”

Street declined to make orders to extend the time to apply for leave to appeal or to permit the filing in the FCC of an affidavit exhibiting the transcript of the hearing before the tribunal. 

“It is axiomatic that the primary judge was obliged to accord procedural fairness to the appellant … It is equally axiomatic that the requirements of procedural fairness include the provision of a reasonable opportunity for the appellant to present evidence to make submissions.” 

The power of the FCC summarily to dismiss an application under s.17A of the FCCA Act and rule 13.10 of the FCC rules is subject to that obligation. 

Asking an unrepresented litigant to identify the jurisdictional error is “pointless and unfair”. 

Mansfield, Tracey and Mortimer signed off saying that it was “difficult to understand” how the judge could conclude that there was no arguable issue of fact or law in the application. It is sufficient, however, to say that it was clearly wrong”.